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Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15

 

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Lineup Was Unduly Suggestive, Court Suggested Everyone In the Lineup Should Have Been Given an Eye Patch Because the Complainant Described the Perpetrator as Having a “Deformed Eye”

The First Department reversed defendant’s conviction and ordered a new trial because the lineup in which defendant was identified by the complainant was unduly suggestive. The complainant had described the perpetrator as having a “deformed eye,” and defendant was the only person in the lineup with that feature. The court suggested having everyone in the lineup wear an eye patch:

The complainant described the perpetrator of the alleged robbery as having one distinctive physical feature: a “deformed right eye” which “appeared to be something further into his head.” At the suppression hearing, the detective who prepared a photo array and a postarrest lineup testified that, in each instance, defendant was the only participant who had an “apparently defective eye.” Under the circumstances, we find that the photo array and lineup were unduly suggestive because “only the defendant matche[d] a key aspect of the description of the perpetrator,” namely, a deformed right eye … . While we recognize the practical difficulties in finding fillers with similarly defective eyes, or photographs of such persons, “[a] simple eye patch provided to each of the lineup participants or a hand over an eye would have sufficed to remove any undue suggestiveness of the procedure” …, and similar measures could have been taken with regard to the photos. People v Perry, 2015 NY Slip Op 08046, 1st Dept 11-5-15

 

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Defense Request to Review Psychiatric Records of Prosecution Witness Properly Denied; Evidence of Shooting of Prosecution Witness Properly Admitted to Show Defendant’s Consciousness of Guilt

The Second Department determined Supreme Court properly reviewed in camera the psychiatric records of a prosecution witness and properly denied the defense request to review the records. The Second Department further determined that evidence defendant’s brother (and a member of the same gang defendant belonged to) shot a prosecution witness was properly admitted to show defendant’s consciousness of guilt:

Psychiatric records are confidential, but they may be disclosed upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality … . The proper procedure in such a case is for the court to order production of the records and to inspect them in camera … .

Here, the Supreme Court, after inspecting the records in camera, properly balanced the interests of justice against the witness’s need for confidentiality and providently exercised its discretion in denying the defendant’s application for disclosure of the records and use of the records in cross-examination … . * * *

Contrary to the defendant’s contentions, the Supreme Court did not improvidently exercise its discretion when it permitted the prosecution witness to testify to the circumstances leading up to and culminating in him being shot by two persons directly connected to the defendant. “Certain post crime conduct is [viewed as] indicative of consciousness of guilt, and hence of guilt itself'” … . Consciousness of guilt evidence includes evidence of coercion and harassment of witnesses … and “[e]vidence that a third party threatened a witness with respect to testifying at a criminal trial is admissible where there is at least circumstantial evidence linking the defendant to the threat” … .

Here, there was sufficient circumstantial evidence linking the defendant to the plot to shoot the witness … and the evidence of the defendant’s gang membership was relevant to establish the relationship between the actors … . Under the circumstances, the probative value of the evidence as to the defendant’s consciousness of guilt outweighed the prejudice … . People v Viera, 2015 NY Slip Op 07998, 2nd Dept 11-4-15

 

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Attorney Whose Testimony Would Support Client Should Have Been Disqualified Under Advocate-Witness Rule, However, the Motion to Disqualify the Attorney’s Firm Was Properly Denied

The Second Department noted that an attorney (Wohlman) should have been disqualified under the advocate-witness rule but the motion to disqualify the attorney’s firm and “of counsel” was properly denied. The attorney’s testimony would not be prejudicial to the client:

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to disqualify Derek Wolman from representing the defendant in this action, since Wolman’s testimony will be necessary regarding “a significant issue of fact” in the dealings between the plaintiff and the defendant (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]…). Contrary to the defendant’s contention, the fact that Wolman’s testimony is necessary to and will support the defendant’s case does not preclude application of the advocate-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7…).

However, the Supreme Court providently exercised its discretion in denying those branches of the plaintiff’s motion which were to disqualify Davidoff Hutcher & Citron, LLP, (hereinafter DHC), Candace C. Carponter, and Candace C. Carponter, P.C., from representing the defendant in this action. Wolman is a member of DHC, and Candace C. Carponter and her P.C. appeared as “of counsel” to DHC. Under rule 3.7(b)(1) of the Rules of Professional Conduct (see 22 NYCRR 1200.0), which are not binding authority and provide guidance only … , “[a] lawyer may not act as an advocate before a tribunal if another lawyer in the lawyer’s firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (22 NYCRR 1200.0, rule 3.7[b][1]). Here, the plaintiff did not argue that Wolman’s testimony would be prejudicial to the defendant. Rather, the plaintiff argued that Wolman’s testimony would support the defendant’s case. Thus, the plaintiff failed to establish any basis for disqualifying DHC, Carponter, or Carponter’s P.C. They can continue to represent the defendant despite the fact that Wolman, their colleague, is a necessary witness … . NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 2015 NY Slip Op 07958, 2nd Dept 11-4-15

 

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Past Recollection Recorded and Hearsay Inadmissible at Trial Properly Considered in Opposition to Defendant’s Summary Judgment Motion

The Third Department determined a statement made by defendant’s employee [Mackey] near the time of plaintiff’s slip and fall was admissible as past recollection recorded and was properly considered in opposition to defendant’s summary judgment motion. In addition, hearsay which would not be admissible at trial was sufficiently corroborated to be considered in opposition to defendant’s motion for summary judgment. Defendant’s motion was properly denied:

… “[T]he requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his [or her] knowledge and recollection when made, and the witness lacks sufficient present recollection of the recorded information” … . Here, Mackey testified that, beyond being upset that her cousin was hurt, she was unable to remember the particulars of the event, but she did recall filling out and signing a document recording her memories at the time. In this document, Mackey averred that she watched plaintiff fall by the Coinstar machine in an area that had been checked by the front-end maintenance crew approximately one hour prior to the incident. In the blank space next to the words “Condition at the time of last check prior to accident:” Mackey wrote, “ice machine is always leaking.” Mackey recalled completing this document within days of the incident and explained that the form did not help to refresh her recollection of the events. On this basis, we agree with Supreme Court’s ruling that Mackey’s written statement was admissible as a past recollection recorded and, as such, properly considered in the context of defendant’s motion for summary judgment …

Further, in keeping with the principles that, “[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” … and such motion should be denied if there is any doubt as to the existence of such issues …, we likewise find no error in Supreme Court’s consideration of Mackey’s oral statement, notwithstanding its likely inadmissibility at trial. With that said, however, we acknowledge that, although “hearsay evidence that is inadmissible at trial may be sufficient to defeat a motion for summary judgment, there must be some additional competent evidence to support the motion or an excuse for the failure to present proof in admissible form” … . Zupan v Price Chopper Operating Co., Inc., 2015 NY Slip Op 07893, 3rd Dept 10-29-15

 

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Expert Who Evaluated Sex Offender As Part of the Initial Case Review Team Was Properly Allowed to Testify at the Civil Commitment Hearing

The Third Department, in a full-fledged opinion by Justice Garry, determined that the psychologist/psychiatrist (Barnes), who was part of the sex offender’s (respondent’s) case review team which recommended civil commitment, was properly allowed to testify at the Article 10 hearing. The respondent had sought to prevent Barnes from testifying because another psychiatrist (for the state) had been appointed for the hearing. The Third Department held that nothing in the Mental Hygiene Law prevented both experts from testifying for the state, and nothing in the Mental Hygiene Law prevented Barnes from having access to relevant diagnostic information generated after he had completed his evaluation for the case review team:

The degree to which Mental Hygiene Law article 10 authorizes a psychiatric examiner who has evaluated a respondent pursuant to Mental Hygiene Law § 10.05 (e) to continue to participate in subsequent proceedings involving the same respondent appears to be a question of first impression. However, nothing in the statute affirmatively precludes such continued participation, and the Court of Appeals has held that relevant evidence may be admissible in article 10 proceedings when “no statute prohibits its use” (Matter of State of New York v John P., 20 NY3d 941, 943 [2012]). As for whether a psychiatric examiner may supplement his or her evaluation report by investigating records of the respondent’s progress following completion of the report, and then rely on such updated information in testifying on the question of confinement, as Barnes did here, Mental Hygiene Law § 10.05 (e) provides the case management team and assigned psychiatric examiner with extensive access to relevant records as part of the initial evaluation. To limit the psychiatric examiner’s subsequent access to relevant information would be inconsistent with the statutory provisions that permit the parties to offer additional evidence on the question of a respondent’s dangerousness at the dispositional hearing and further direct that, “[i]n making a finding of disposition, the court shall consider . . . all available information about the prospects for the respondent’s possible re-entry into the community” (Mental Hygiene Law § 10.07 [f] [emphasis added]).

Contrary to respondent’s argument, petitioner was not required to demonstrate that Barnes’ testimony was “necessary.” Instead, in the absence of any rule prohibiting such evidence, the test for admissibility is whether the testimony is material and relevant to the issues posed … . Here, Barnes possessed knowledge of respondent’s pathology that was clearly material and relevant on the issue of whether he required confinement. * * *

Likewise, we find no abuse of discretion in the denial of respondent’s motion for the appointment of a second expert. Matter of State of New York v James K., 2015 NY Slip Op 07874, 3rd Dept 10-29-15

 

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Failure to Turn Over Impeachment Evidence Re: a Central Prosecution Witness Required Vacation of the Conviction

The Second Department determined County Court properly vacated defendant’s conviction.  The case against the defendant relied entirely on a statement taken by Detective Tavares.  The prosecution did not turn over to the defense evidence alleging Detective Tavares had procured a false confession (leading to a federal lawsuit):

The People have an obligation to disclose exculpatory evidence in their possession that is favorable to the defendant and material to his or her guilt or innocence … . “The prosecutor’s duty to exchange Brady material extends to the disclosure of evidence that can be used to impeach the credibility of a witness for the People whose testimony may be determinative of the defendant’s guilt” … . In order to establish a Brady violation, a defendant must prove: (1) the evidence at issue is favorable to him or her, (2) the evidence was suppressed by the prosecution, either willfully or inadvertently, and (3) prejudice arose because the suppressed evidence was material … .

Here, the crucial evidence against the defendant at trial was his statement admitting to the shooting, taken by Detective Ronald Tavares. There was no physical evidence connecting the defendant to the crime, and the eyewitnesses could not identify him. Given the importance of Detective Tavares’ testimony in establishing the defendant’s guilt, the Supreme Court properly determined that evidence concerning allegations that he had procured a false confession in an unrelated matter involving two police officers, which led to an internal affairs investigation of those officers and a federal lawsuit against, among others, Detective Tavares, was favorable to the defense and material … . The evidence was responsive to a defense demand and there is a reasonable possibility that the outcome of the trial would have differed had the evidence been produced … . Furthermore, the defendant sufficiently established that the prosecutor had actual knowledge of the allegations against Detective Tavares and the related investigation in the unrelated matter … . People v Hubbard, 2015 NY Slip Op 07858, 2nd Dept 10-28-15

 

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Affidavits and Text Messages Do Not Constitute “Documentary Evidence” In the Context of a Motion to Dismiss Pursuant to CPLR 3211(a)(1)

The Second Department determined defendant’s motion to dismiss the breach of contract complaint should have been denied. The affidavits and text messages submitted in support of the motion did not constitute “documentary evidence” upon which a motion to dismiss may be based. The court defined “documentary evidence” in this context:

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,’ would qualify as documentary evidence’ in the proper case” … . However, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … .

Here, the affidavits and text messages relied upon by the Supreme Court in concluding that the plaintiff failed to comply with the alleged condition precedent were not ” essentially undeniable,'” and did not constitute documentary evidence … . Eisner v Cusumano Constr., Inc., 2015 NY Slip Op 07812, 2nd Dept 10-28-15

 

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Non-Constitutional Appellate Issues Re: Refusal to Submit to a Chemical Test (DWI) Do Not Survive a Guilty Plea

The Second Department, in a full-fledged opinion by Justice Leventhal, determined defendant, by pleading guilty, had forfeited his right to appellate review of (non-constitutional) rulings about the admissibility of his refusal to submit to a chemical test (DWI) after his involvement in a car accident. The court explained why some appellate issues survive a guilty plea and some don’t:

The Court of Appeals has repeatedly observed that “a plea of guilty generally marks the end of a criminal case, not a gateway to further litigation'” … . A guilty plea signals the defendant’s intention not to litigate the issue of his or her guilt, “and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury” … . A guilty plea not only encompasses a waiver of the specific rights attached to a trial, but also “effects a forfeiture of the right to renew many arguments made before the plea” … . “This is so because a defendant’s conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial'” … . The forfeiture occasioned by a guilty plea extends to a variety of claims, including those premised upon a failure to provide CPL 710.30 notice … , the statutory right to a speedy trial … , the exercise of alleged discriminatory peremptory challenges … , and adverse rulings on Sandoval and Ventimiglia/Molineux applications … .

However, not every claim is forfeited by a guilty plea. The issues that survive a valid guilty plea generally relate either to jurisdictional matters, such as an insufficient accusatory instrument, or to rights of a constitutional dimension that go to the heart of the criminal justice process … . “The critical distinction is between defects implicating the integrity of the process, which may survive a guilty plea, and less fundamental flaws, such as evidentiary or technical matters, which do not” … . Examples of rights of constitutional dimension which are not forfeited by a guilty plea include the constitutional right to a speedy trial, the protection against double jeopardy, and the competency of the defendant to stand trial … .

Among the limited group of issues that survive a valid guilty plea and may be raised on a subsequent appeal are those relating to the denial of a motion to suppress evidence under CPL 710.20 … . The Legislature has preserved such claims for appellate review through the enactment of CPL 710.70(2) … . CPL 710.70(2) expressly grants a defendant a statutory right to appellate review of an order denying a motion to suppress evidence “notwithstanding the fact” that the judgment of conviction “is entered upon a plea of guilty.” However, the statutory right to appellate review created by CPL 710.70(2) applies to orders which deny a motion to suppress evidence on the grounds enumerated by CPL 710.20 … .  Athough CPL 710.20(5)  authorizes a defendant to move to suppress evidence of “a chemical test of the defendant’s blood administered in violation of the provisions” of Vehicle and Traffic Law § 1194(3) or “any other applicable law,” that provision is not implicated here. In this case, the defendant did not move to suppress the results of a chemical test of his blood. Indeed, the police did not perform a chemical test upon the defendant. Rather, he moved to preclude the People from admitting testimony of his refusal to submit to a chemical test. Such a motion cannot be characterized as one seeking suppression under CPL 710.20(5). Accordingly, the defendant does not have a statutory right to appellate review of the County Court’s ruling permitting the introduction of evidence of his refusal to submit to a chemical test.

Nor is the defendant’s claim that the County Court erred in ruling that the People would be permitted to introduce evidence at trial of his refusal to submit to a chemical test a claim of constitutional dimension, or one that bears upon the integrity of the judicial process. Rather, the court’s determination relates to an evidentiary or technical matter. People v Sirico, 2015 NY Slip Op 07862, 2nd Dept 10-28-15

 

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Defendant-Driver’s Admission and Prior Inconsistent Statement, Contained in the Police Accident Report, Should Have Been Admitted in Evidence

The Second Department reversed a defense verdict in a vehicular accident case because an admission and prior inconsistent by the defendant-driver, included in a police accident report, was not admitted in evidence:

On appeal, the plaintiff contends, among other things, that the Supreme Court erred in precluding her from admitting into evidence that portion of the police accident report which contained [defendant-driver’s] statement that he never observed the plaintiff’s vehicle prior to the accident. This statement was admissible against the defendant as an admission, since it tended to inculpate the defendant in connection with a material fact … . Moreover, that same statement in the police accident report was admissible as a prior inconsistent statement … . Under the circumstances presented her, the error in precluding the admission of that portion of the police accident report into evidence cannot be considered harmless, as it bore on the ultimate issue to be determined by the jury … . Brown v URS Midwest, Inc., 2015 NY Slip Op 07809, 2nd Dept 10-28-15

 

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